A five-member Constitution Bench of the Supreme Court has endorsed the right of the State governments to create sub-categories within the Scheduled Caste (S.C.) category—such as Arunthathiyars in Tamil Nadu and Valmikis and Mazhabi Sikhs in Punjab—in order to ensure an equitable distribution of socio-economical benefits under reservation.
The bench led by Justice Arun Mishra said that it had referred the issue to the Chief Justice of India (CJI) requesting him to post it to a larger, seven-member bench. It pointed out that the issue needed further study as it involved interpretation of Articles 16(1), 16(4), 338 and 341 of the Constitution of India.
Another reason for the referral, the bench said in its verdict given on August 27, was that a coordinate bench of five judges in the E.V. Chinnaiah vs State of Andhra Pradesh (2004) had already ruled that sub-categorisation within the S.C. category was not permitted. The five-member bench said that under Article 341, the Scheduled Castes were “homogeneous” and, hence, any inter se classifications within that group was a violation of Article 14. It struck down a similar law passed by the then Andhra Pradesh government to ensure equitable benefits within the S.C. category. However, in State of Punjab vs Davinder Singh, 2011 , a Supreme Court bench had approved the State governments’ powers to sub-categorise the S.C. category.
The verdict in the Chinnaiah case had opened up a judicial debate on issues regarding the constitutional validity and the legislative powers of State governments relating to reservations for the S.C., the Scheduled Tribes (S.Ts), the Backward Classes and Most Backward Classes (MBCs). It also raised the issue of creamy layer among the S.C. groups.
The August 27 judgment said that since sub-categorisation has been allowed in the Punjab case, internal reservations in various States, including the 3 per cent for Arunthathiyars in Tamil Nadu, will continue until the yet-to-be-constituted larger bench decides it. In 2009, the Dravida Munnetra Kazhagam (DMK) government led by Chief Minister M. Karunanidhi had reserved 3 per cent for Arunthathiyars within the 18 per cent reservation for the S.C. category. A few Dalit groups, including Puthiya Thamizhgam, a Dalit political party, opposed it and went to court.
In the State of Punjab vs Davinder Singh, the bench, considering a batch of other similar petitions, including ones from Tamil Nadu, had upheld the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006, which provided internal reservation for Balmikis and Mazhabi Sikhs. Earlier, a Division Bench of the Punjab and Haryana High Court had struck down the provisions of the Act in 2010, relying upon the decision in the Chinnaiah case.
In view of the Punjab case, the current bench deliberated on “whether it is not permissible to provide any further reservation to the weakest of the weak, particularly when it has not been possible to trickle down the benefit of reservation to the weakest and the same is utilised by the upper class within the group, who enjoy the benefit of reservation to the maximum, creating disparities within its class.” The judgment in the Chinnaiah case, the bench felt, needs to be revisited to decide whether the S.Cs and S.Ts could be treated as a homogenous class.
The bench quoted extensively the submissions made by senior counsels during the hearing. Those who demanded sub-categorisation and internal reservation argued that the decision of the court in the Chinnaiah case should be revisited. Ranjit Kumar, counsel for Punjab, said that the decision in the Chinnaiah case was taken on the erroneous premise that the State governments’ preference for certain Scheduled Castes under Article 16(4) “tinkers with the Presidential List under Article 341”. He said that “merely giving of preference does not tinker, rearrange, sub-classify, disturb or interfere with the list in any manner whatsoever since there is no inclusion or exclusion of any caste in the list as notified under the meaning of Article 341”.
Article 16(4), he said, covered all backward classes including the S.C. and S.T. communities. The expressions used in Article 16(4) were “any backward class of citizens” and “not adequately represented”, which covered all socially and educationally backward classes, including the S.C. and S.T. communities. “The preferential treatment given to certain Scheduled Castes/Scheduled Tribes does not violate Article 14. It intends to provide proportional equality,” Ranjit Kumar said.
R. Venkataramani, counsel for the Tamil Nadu government, argued that the judgment in the Chinnaiah case would continue to have an empirically demonstrable baneful effect on the general interests of the public. He said that it was inconsistent with the legal philosophy of the Constitution regarding equality and equal opportunity. “The decision in E.V. Chinnaiah , which holds that Scheduled Castes and Scheduled Tribes once classified are a homogenous class, is removed from social and economic reality. If the decision continues to operate, a large section of Scheduled Castes and Scheduled Tribes would be deprived of the guarantees under Articles 14 to 16. The decision in E.V. Chinnaiah deserves to be revisited by a larger bench,” he said.
He pointed out that in the judgment in the Indra Sawhney case (1992, which upheld reservations for OBC in employment but struck down reservations in promotions), the word “backward classes” included S.C. and S.T. categories. All considerations involved in dealing with backward classes—such as grouping, classification or sub-classification of castes and tribes—would apply to the S.C. and the S.T. categories as well. He noted that in the M. Nagraj and Jarnail Singh case, the exclusion of the creamy layer among the S.C. category was permitted under Article 16(4). Further, a class of citizens could not be treated as socially and educationally backward in perpetuity.
Shekhar Naphade, senior counsel in the Supreme Court, argued that Arunthathiyars formed the lowest rung in the S.C. category. “The Tamil Nadu Arunthathiyars (Special Reservation of Seats in Educational Institutions including Private Educational Institutions and Appointments or Posts in the Services under the State within the Reservation for Scheduled Castes) Act, 2009, does not tinker with the Presidential List of Scheduled Castes in any manner. Special reservation is a fundamental aspect of Article 14 of the Constitution,” he said. The Chinnaiah case, he claimed, failed to take note of ground realities and was not based on statistical data collected by the State showing disparities among S.C. and the S.T. categories.
Jyoti Mendiratta, counsel for Delhi State, drew the attention of the bench to the findings of the Justice M.S. Janarthanam Committee of Inquiry for Special Reservation for Arunthathiyars. “They were not able to reap the fruits of reservation as there was an upper crust within Scheduled Castes, and most of the posts were reserved for Scheduled Castes and Scheduled Tribes. Though Arunthathiyars were 16 per cent of the Scheduled Caste population, they managed to obtain reservation to a much lower extent,” she said.
T hose who opposed the sub-categorisation and internal reservation among the S.C. category and endorsed the observations in the Chinnaiah case told the bench that it was not the part of the Parliament or State Assemblies to make classification inter se S.C. and S.T. categories once they were included in the Schedule. The Parliament was empowered to include or exclude any caste from the Presidential List. Legislating sub-classification was constitutionally impermissible, they argued.
The bench pointed out that the Chinnaiah case held that the S.C. category was homogenous. In the Indra Sawhney case, the majority of the judges held that some sections were more backward within the backward classes and that if the state chose to make such classification, it would be permissible in law. The State of Punjab argued that preferential treatment given to certain S.C. and S.T. categories “does not violate Article 14 but brings about proportional equality”. Those who were unequal among the S.C. and S.T. categories should be given the benefit of reservation as guaranteed under Article 14, it said.
Creamy Layer
The bench also discussed in detail the issue of creamy layer in the S.C. category. It said that in the Indra Sawhney case, it was noted that exclusion was practised by those who were socially and educationally advanced within backward classes. It based its arguments on the observations of Justice B.P. Jeevan Reddy (for himself and other three judges), who said in a case: “We see no reason to qualify or restrict the meaning of the expression ‘backward class of citizens’ by saying that it means those other backward classes. As a matter of fact, neither the several castes/groups/tribes within the Scheduled Castes and Scheduled Tribes are similarly situated nor are the Scheduled Castes and Scheduled Tribes similarly situated.”
In the Jarnail Singh case, it was pointed out that the object of reservation was to see that the backward classes move forward on an equal basis. “This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were. This being the case, it is clear that when a court applies the creamy layer principle to Scheduled Castes and Scheduled Tribes, it does not in any manner tinker with the Presidential List under Articles 341 or 342 of the Constitution of India. It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer who are excluded from the benefit of reservation,” the bench noted.
The bench said that when Articles 14 and 16 were harmoniously interpreted along with Articles 341 and 342, it was clear that Parliament had the freedom to include or exclude persons from Presidential Lists on the basis of relevant factors. “Similarly, constitutional courts, when applying the principle of reservation, will be well within their jurisdiction to exclude the creamy layer from such groups or sub-groups when applying the principles of equality under Articles 14 and 16 of the Constitution of India,” it pointed out and said that a “class of citizens cannot be treated to be socially and educationally backward till perpetuity”.
The bench poined out that Articles 342 and 342A, which deal with the S.T. community and socially and educationally backward classes respectively, empowered the President to issue public notifications with respect to socially and educationally backward classes, and Parliament had the power by law to include or exclude groups from the Central List of socially and educationally backward class. “Also the provisions of Article 16(4) and Article 342A indicate that it would not be permissible to adopt different criteria for Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes,” it noted.
The bench further said: “The question of immense public importance arises in view of the insertion of Article 342A. When we consider Indra Sawhney, permitting such classification of socially and educationally backward class, and provisions of Articles 341, 342, and 342A are pari materia, the Court is required to have a fresh look at the decision rendered in E.V. Chinnaiah. In the spirit of constitutional provisions, the question is required to be re-examined authoritatively by this Court, being of immense public importance. Thus, the case is required to be heard by a larger bench than the one which decided E.V. Chinnaiah case.”
Caste and class
On the question whether sub-classification was justified, the bench was of the opinion that all castes included in the list of Scheduled Castes were given the benefit of reservation, though a specific percentage of people, being more backward within the backward classes of the S.C. community, were not able to enjoy the benefit of reservation. “The preferential treatment would not tantamount to excluding other classes as total deprivation caused to any of the castes in the list of Scheduled Caste under Article 341(2). Caste is nothing but a class. It is the case of classification to provide benefit to all and to those deprived of the benefit of reservation, being the poorest of the poor,” it said.
It further elaborated that backward classes under Article 16(4) do comprise some castes: “In our opinion, the decision is relevant for interpreting Article 16(4) provisions in their application to Scheduled Castes, Scheduled Tribes, and other backward classes. They stand on the similar footing, and they cannot be treated as different from other as also fortified by insertion of Article 342A which is pari material to Article 341 or 342.”
The bench took up the question of whether sub-classification for providing benefit to all castes could be said to be tinkering with the Presidential List under Articles 341, 342 and 342A. It said: “The caste or group or sub-group continued exactly as before in the list. It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation.”
The bench dealt with the question of trickling down of benefits to the bottom rung. It said: “Reports indicate that benefit was being usurped by those castes (class) which had come up and adequately represented. It is clear that caste, occupation, and poverty are interwoven. The state cannot be deprived of the power to take care of the qualitative and quantitative difference between different classes to take ameliorative measures. On the one hand, there is no exclusion of those who have come up. On the other hand, if sub-classification is denied, it would defeat right to equality by treating unequal as equal.”
The bench said: “The entire basket of fruits cannot be given to [the] mighty at the cost of others under the guise of forming a homogenous class. The Constitution is an effective tool of social transformation; removal of inequalities intends to wipe off tears from every eye. The very purpose of providing reservation is to take care of disparities. There are unequals within the list of Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes. Are they destined to carry their backwardness till eternity?” the bench said.
State’s responsibility
The state’s obligation, the bench said, was to undertake emancipation of deprived sections of the community and eradicate inequalities. “When the reservation creates inequalities within the reserved castes itself, it is required to be taken care of by the state, making sub-classification and adopting a distributive justice method so that state largesse does not concentrate in few hands and equal justice to all is provided.”
Pointing out that providing a percentage of the reservation within permissible limit was within the powers of the State legislatures, the bench further said that to achieve the real purpose of reservation, the needy should always be given benefits. “Otherwise, it would mean that inequality being perpetuated within the class if preferential classification is not made, ensuring benefit to all.”
Hence the state had the competence to grant reservation benefits to S.C. and S.T. communities under Articles 15(4) and 16(4), 341(1) and 342(1).
